Second Circuit Decision in Sexual Harassment Case Shows Heightened Risk for Health Care Employers

by Epstein Becker & Green

Epstein Becker & Green

Health care employers should be aware that a recent holding from the U.S. Court of Appeals for the Second Circuit may indicate that courts and juries are beginning to weigh in on the dramatic sexual harassment developments, such as the #MeToo and #Time’sUp movements addressing workplace harassment, by holding employers to heightened standards, including as to “last chance” agreements. In MacCluskey v. University of Connecticut Health Center[1] (“MacCluskey”), the Second Circuit upheld a jury verdict awarding plaintiff Mindy MacCluskey $125,000 in damages after finding that she was subject to a hostile work environment where she was repeatedly sexually harassed by a co-worker, dentist Michael Young, who was subject to a last-chance agreement from 10 years earlier. The bottom line in the MacCluskey holding is that it is not enough for employers to merely maintain a policy prohibiting sexual harassment, they must also take reasonable care to enforce the policy.

Background of the MacCluskey Case

MacCluskey began working as a dental assistant for the University of Connecticut Health Center (“UCHC”) in 2008. Both MacCluskey and Young were supervised by Dr. Alexis Gendell, making them co-workers despite MacCluskey’s assistant role. In mid-2009, approximately six months after they began working together, Young allegedly began invading MacCluskey’s personal space and speaking to her in a manner that she described as “creepy” and “weird.” He complimented her “young and beautiful” appearance, noted his surprise to learn that she had had multiple children, and asked personal questions that made her feel uncomfortable, including about her relationship with her children’s father and whether “anybody had ever cheated.” MacCluskey reported her discomfort to a co-worker and a union representative. When Dr. Gendell, the supervisor, subsequently spoke to MacCluskey about the situation,[2] MacCluskey responded “there is a situation and I’m all set. It is under control.” Dr. Gendell allegedly did not follow up, and UCHC took no further action until February 2011, when the harassment escalated.[3] At that time, MacCluskey reported to her new supervisor that Young had put his hand under her shirt. Young was placed on paid administrative leave during UCHC’s investigation, later choosing to resign rather than be fired after the investigation concluded.

MacCluskey sued UCHC on September 25, 2013, claiming gender discrimination and a hostile work environment under Title VII of the Civil Rights Act of 1964. A jury found in her favor on March 30, 2017, awarding her $200,000, which the court later reduced to $125,000.

Distinguishing Facts

On appeal, the Second Circuit upheld the trial court’s verdict, finding that UCHC “knew, or in the exercise of reasonable care should have known, about the harassment but failed to take appropriate action.” However, several notable elements distinguish this case from many other harassment cases.

Young’s History of Harassment and Last-Chance Agreement

The Second Circuit noted the fact that Young had been disciplined by UCHC for sexually harassing another dental assistant in 2000 and was thereafter subject to a last-chance agreement with a termination clause upon “any future instances of unsolicited flirtatious letters or comments to any employee, or any behavior similar to this.” Despite this agreement, however, MacCluskey also introduced evidence suggesting that UCHC paid little, if any, attention to the agreement after its inception. Young’s subsequent supervisors, including Dr. Gendell, were not informed of the harassment complaint against Young or the last-chance agreement, and, in alleged violation of UCHC’s own policy, Young received no extra attention, monitoring, or training as a result of the 2000 complaint and last-chance agreement. Furthermore, several of the basic, mandatory-for-all-employee trainings Young reportedly completed in the years following the 2000 complaint were self-administered, and their completion could not be verified.

Timing of Misconduct and Last-Chance Agreement

Nearly 10 years passed between the initial harassment complaints levied against Young by the other dental assistant and his resignation following the investigation into his conduct toward MacCluskey. No evidence presented at trial suggested that the last-chance agreement was ever terminated. No additional incidents were identified during that time, which may have been due, in part, to the fact that his supervisors seemingly were unaware of the agreement. Despite the 10-year gap, the Second Circuit nonetheless appears to have evaluated UCHC’s actions (and inactions) against a heightened standard.

What Health Care Employers Should Do Now

The Second Circuit’s holding may indicate a tendency to hold employers to a higher standard in light of the current cultural reckoning with sexual harassment and assault.

Therefore, employers should be:

  • Vigilant in preventing harassment and documenting misconduct to avoid repeat offenses

Effective prevention does not necessarily mean canceling the annual holiday party or all other social activities. It does, however, require proactive measures, such as providing appropriate training that employees and management take seriously due to the strong and visible support of the most senior levels of management. Documentation of the training and attendance is also strongly advised.

Additionally, employers should offer and promote ways for employees to report when they experience or witness harassment, mandate and enforce strict documentation procedures, and foster internal communications between managers to maintain the integrity and significance of behavioral issue records.

It almost goes without saying that an employer’s sexual harassment policies and complaint procedures must zealously assure that there is no retaliation for bona fide complaints or reports. Employers need not abandon the use of last-chance agreements when they are warranted. Employers must be mindful that the implementation of “zero tolerance” policies may limit their flexibility in being able to offer last-chance agreements. Further, an employer that elects to implement a last-chance agreement must be aware that it might incur a heightened responsibility for monitoring the subject employee and enforcing the terms of the agreement, perhaps indefinitely, if it is not formally terminated at an appropriate point in time if the employee has demonstrated full compliance.

  • Sensitive to employee complaints and risky situations

Isolated work environments, like Young and MacCluskey’s, where employees are not regularly visited by supervisors, create additional risks for employers. Had UCHC more closely monitored Young, it may have discovered the harassment or more plausibly asserted that the harassment was not discoverable despite UCHC’s exercise of “reasonable care.” Employers should also be mindful that employees may be reluctant to make formal reports, particularly when harassment is primarily verbal and the employee has other concerns to consider, such as the need to provide for a family, be close to home for childcare, or for transportation purposes. Supervisors have a duty to report potential misconduct, regardless of whether the employee does not want to pursue a complaint or investigation. Employers should be alert to any signs of harassment and not exclusively rely on formal reports to identify harassment in the workplace, given the present environment.

  • Prompt in investigating alleged misconduct and redressing substantiated misconduct allegations

It’s not enough to merely maintain a policy prohibiting sexual harassment. As the Second Circuit noted in MacCluskey, employers must also take reasonable care to enforce the policy.

  • Unwilling to overlook or downplay misconduct of “top performers,” and intolerant of harassment-correlated behaviors, like bullying

The #MeToo and #Time’sUp movements have highlighted that some employers may have considered an employee’s (monetary) value to the company in the calculus of determining how the employer addresses misbehavior. Employers should clearly demonstrate that workplace behavioral standards apply to all employees equally. Additionally, according to a group of former members of the U.S. Department of Labor’s Whistleblower Protection Advisory Committee, employers should ensure that “informal norms do not tacitly condone inappropriate behavior.”[4] Preventing workplace sexual or other harassment and bullying must be a top priority for employers in 2018.


[1] MacCluskey v. Univ. of Conn. Health Ctr., 17-0807-cv, 2017 U.S. App. LEXIS 26218, at *11 (2d Cir. Dec. 19, 2017).

[2] The parties disputed the nature of this conversation: MacCluskey claimed the conversation “took place in the hallway, where others were present, and . . . she felt ‘embarrassed’ and ‘uncomfortable’”; Gendell claimed that she “summoned Ms. MacCluskey to her office, where the conversation was held in private.”

[3] Among other behaviors, Young allegedly asked MacCluskey to model lingerie for him, told her that he had helped her get the job and that she “owed him,” stood in the doorway silently for sustained periods watching while she worked, and sent a Valentine's Day gift to her (undisclosed) home address. MacCluskey also testified that if she asked or told him to stop, that would at times only make him more persistent in his actions.

[4] Jonathan Brock, Billie Pirner Garde & Marcia Narine Weldon, Opinion, What Exactly Is Zero Tolerance on Sexual Harassment?, Boston Globe, Jan. 2, 2018,

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Epstein Becker & Green | Attorney Advertising

Written by:

Epstein Becker & Green

Epstein Becker & Green on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.